Abstract
This chapter engages an in-depth comparative analysis of theories of preventive and neo-Kantian retributivist lethal punishment and their Buddhist critique, taking in metaphysical, psychological and normative grounds. After distinguishing legal lethal punishment in its preventive and deterrent senses of justification, a representative neo-Kantian argument for capital punishment is surveyed in detail. This account is then contextualised with respect to Buddhist normative considerations around suffering and moral consequence, relating these to the Buddhist heuristics analysed in Chap. 3. Buddhist metaphysical and psychological analyses of the bases of and justification for capital punishment are engaged to refute the putatively rational grounds brought to its defence, thereby presenting an alternative account of punishment seeking to honour legitimate grievances. A Buddhist theorisation of restorative justice thus addresses the epistemic and normative dimensions of judging heinous crime and its appropriate punishment, as well as the value of the dignity of persons originally brought to the defence of retributive killing. On the Buddhist account, lethal punishment can only succeed in perpetuating the moral-psychological preconditions for crime such punishment is intended to justly punish.
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Notes
- 1.
See Sorell (30 ff.) for summary discussion of the claims that are frequently brought to bear in support of capital punishment as deterrence and retribution. The empirical content of these reasons may vary between cultures, often very widely (for instance, lethal punishment for the “wrong” of witchcraft is still common in the Papuan highlands). However, it is unlikely that the intentional structure pertaining to and between these reasons, as detailed above, significantly varies.
- 2.
Of course, in general usage “prevention” can apply to all these instances. But this distinction is to identify the contrasting forms of intentionality that remain opaque in that usage.
- 3.
See ABC News “Fact Check” (2015), Donohue (2015). Cf. Nagin and Pepper (2012); also Donohue and Wolfers (2009).
- 4.
For a still stronger general statement, cf. Honderich (ed.) (1995, 120–121).
- 5.
Nor is infallibility per se a sufficient condition for permissibility; the point here is that the evidence does not support even a fallible claim for deterrence.
- 6.
Again, these reasons can take varying form across cultures, but it could be argued that they philosophically translate into those examined below, or that where subsidiary reasons support them, or could be substituted by others, these do not in themselves undermine the critique that I make of the arguably universal primary reasons.
- 7.
Note also that while lex talionis, or the law of “an eye for an eye” is popularly understood as a form of retributive justice (central for instance to Kant’s theory of punishment), its reasoning is more narrowly distinct from the broader sense of retribution given here.
- 8.
There are of course strong conceptual links between any justification of non-lethal and of lethal retribution, but the discussion and refutation of the former, with reference to a Buddhist theory of punishment, would shift the focus of the present discussion. However, some of the following argument will apply to retributivism more broadly, as there specified, even while the target of its critique is the lethal dimension of LR and only secondarily retributivism per se.
- 9.
It is thus also by virtue of this self-understanding of retribution, that any crime inequivalent to murder, and however grave, is not susceptible to lethal retributive, but rather only to non-lethal, punishment. Kant’s apparent uncertainty regarding the relevant identity-conditions of murder for retribution in its borderline cases (such as infanticide and duels) tends to confirm the same; see Sorell 142. Hence, all non-lethal (such as religious, ideological or political) crimes to which capital punishment is sometimes applied, including by Kant, are not relevant to this analysis of LR.
- 10.
This statement also informs the equivalent Kantian principle that in committing intended murder, the murderer forfeits the right to (his own) life. All three principles (of Just Requital, of Equality or just proportionality between crime and punishment, and the forfeiture of life) can be understood as related aspects of the same general doctrine of right requital, and they are so taken in what follows.
- 11.
Note that the determinative function of the PE in cases of proportional punishment in general, relevant to jurisprudential theory and practice, is not at issue here. As noted above, the distinction is ethically salient when we’re concerned to identity what LR deems, via the PE, to be lethally punishable.
- 12.
It should be noted in this context that in thus ostensibly serving the protection of state subjects, LR also serves the end of state control, including by authoritarian or totalitarian power. This arguably informs why China consistently executes more people on average than all other countries combined. Enforcement of efficient crime-control does not ipso facto guarantee the robustness of civil freedoms and rights under protection of the state.
- 13.
We can note here a possible quandary given a Buddhist claim for post-mortem kamma, which might theoretically hold that capital punishment serves the cause of moral reform of the rebirth of the same consciousness. The most obvious problem with this claim is one of epistemic access which, failing a Buddha’s omniscience, remains indeterminable. But there are two other, related, problems. First, it’s unclear whether, given kamma as constituting impersonal, a-subjective causal processes, the subjective comprehension of current life wrong-doing would be translated into a next life personal appropriation of such fault, and thence a possible commitment to reform in that life. Rather, second, any subjective apprehension (as “mine”) of being imminently executed for wrong-doing could more plausibly result (via impersonal kammic imprints) in a subsequent ego-centred resentment and thirst for vengeance (and so more intended violence). As an index of ignorance, kamma is functionally understood as habitual willed action. It is difficult to see where grounds for even minimal insight (and so reform) lies in this conditioned series: such insight, for Buddhist soterics, is not a product of lethal coercion, but of incremental self-understanding.
- 14.
- 15.
Sitze notes Kant’s agreement with Beccaria whereby “the rights of the person are inviolable (or, to be precise, that liberty ends and tyranny starts at that point when law begins to treat the man no longer as a person but now as a thing […])” (234).
- 16.
Sorell (for our purposes somewhat ironically) notes that, “Surely the reason for making murder a crime is some reason for punishing murderers, and surely the reason for making murder a crime can be the evil of violent loss of life, whether or not the violent loss of life is attended by feelings of grievance.” (158, my italics).
- 17.
Much subsequent criticism of the prosecution of the Nuremberg trials focused on the degree to which due process was a function of the exercise of political power rather than justice per se. Associate Supreme Court Justice William O. Douglas, for example, claimed that the Allies were guilty of “substituting power for principle” at Nuremberg. “I thought at the time and still think that the Nuremberg trials were unprincipled […] Law was created ex post facto to suit the passion and clamor of the time.” (in Thompson, Jr. and Strutz 1983).
- 18.
This raises a curious question. It could be plausibly held that the consciousness of the executioner, who as the proxy of the state does the actual killing, is not obviously characterised by hatred in the commission of the efficient cause of death. But on the Buddhist causal account developed above, the primary cause(s) for the execution are collective intentions in the form of the volitional deliberations of a judge and jury (and antecedently a state legislature that authorises the legal right to exercise those intentions). Hence, the Buddhist claim of constitutive hatred in the intention to kill refers to this primary, rather than efficient, cause of killing, of the individually given case of LR. Inasmuch as the agent of the efficient cause is causally linked to the (here collective) intention of other decision-makers, he is not exonerated from the moral (kammic) effects of his individual action determined by those prior decisions.
- 19.
In practice LWOP would in this most severe Buddhist case of punishment be conceived as life imprisonment that allows for interpersonal relationships, productive work, and reformative opportunities: that is, a life in prison that actively engages the means and effects of personal rehabilitation.
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Kovan, M. (2022). Persons as the Objects of Lethal Justice. In: A Buddhist Theory of Killing. Springer, Singapore. https://doi.org/10.1007/978-981-19-2441-5_10
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